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Why the ObamaCare Tax Penalty Is Unconstitutional

The federal power to tax is not unlimited, as the Supreme Court recognized when it struck down the first national income tax.

By

J. Kenneth Blackwell And Kenneth A. Klukowski

Updated July 22, 2010 12:01 a.m. ET

The Justice Department announced last week that it would defend the new federal health-insurance mandate as an exercise of Congress's "power to lay and collect taxes," even though Barack Obama had insisted before the bill's passage that it was "absolutely not a tax increase." The truth is the mandate is not a tax—and if it were it would be unconstitutional.

A tax is when the government takes money from individuals, puts it in the Treasury, and plans to spend it. With the health-insurance mandate, the government...